LOCAL GOVERNMENT CHANGE COMMISSION · latter’s responsibility for the day to day management of the area. Under an Indigenous Land Use Agreement WWASC has prepared a Management Plan

LOCAL GOVERNMENT CHANGE COMMISSION

REPORT ON A CHANGE TO THE EXTERNAL BOUNDARIES OF WUJAL WUJAL ABORIGINAL

SHIRE COUNCIL AND CAIRNS REGIONAL COUNCIL

REPORT

JULY 2011

Level 6, Forestry House Telephone: 1300 881 665

160 Mary Street Facsimile: (07) 3229 7391

Brisbane Queensland 4000 Internet: www.ecq.qld.gov.au

TABLE OF CONTENTS

CHAPTER 1 — INTRODUCTION..............................................................................1

Terms of reference................................................................................................................ 1

Legislative provisions .......................................................................................................... 1

The review process............................................................................................................... 2

CHAPTER 2 — FINDINGS ........................................................................................4

CHAPTER 3 — RECOMMENDATIONS....................................................................6

Wujal Wujal/Cairns External Boundary Report

Electoral Commission of Queensland Page 1

CHAPTER 1 — INTRODUCTION

Terms of reference

On 22 September 2010 the Electoral Commissioner, Mr David Kerslake, in his capacity as Change Commissioner received from the (then) Minister for Local Government the Hon. Desley Boyle MP a reference requiring a review of the boundary between Wujal Wujal Aboriginal Shire Council (WWASC) and the adjoining Cairns Regional Council.

The proposal was to transfer the following lots from the Cairns Regional Council to the WWASC—

1 The football field described as Lot 2 on Plan SP171837

2 An area to be created as Reserve for Environmental, Recreation and Aboriginal purposes with WWASC as trustee and described as Lot 17 on Plan SP224301

On 20 December 2010 the Minister referred a further proposal to transfer the following lots from Cairns Regional Council to WWASC—

1 Lot 8 on RP903515, Lot 9 on RP 903516, Lot 10 on RP 903517 (all currently owned by WWASC) and Lot 12 on BK 15783 (privately owned).

In relation to the second referral the Minister noted that Lots 8, 9 and 10 were currently subject to the WWASC Alcohol Management Plan but that Lot 12 was excluded from that plan.

The Change Commission decided to deal with all of the above proposals as a single review. Since the Local Government Act (as it then applied) required the Change Commission to conduct a public meeting in the Wujal Wujal community, processing of the review was postponed until after the “wet” season.

Legislative provisions

Under the Local Government Act the Change Commission is responsible for assessing whether proposed local government changes are in the public interest. The Commission may conduct its assessment in such manner as it thinks fit, but as a minimum it must take into account any views expressed by the Minister and invite submissions from any local government affected by the proposal. Under the provisions that applied when these particular referrals were received (since amended), the Commission was also required to hold a public hearing to seek public input on the proposed change.

If it is in agreement with the proposed change, the Commission may recommend that the Governor in Council implement its assessment by Regulation.

The Act requires that the Commission let the public know the results of its assessment and its reasons, by publishing its findings in a newspaper circulating generally in the local government area, in the Government Gazette and on the Electoral Commission’s website.

Report Wujal Wujal/Cairns External Boundary

Page 2 Electoral Commission of Queensland

The review process

Written views of both the WWASC and Cairns Regional Council, supporting the proposals, were forwarded to the Change Commission with the Minister’s referrals. Copies are attached to this report at Appendix A.

The landholders of Lot 12, who would be directly affected by one of the proposals, were given the opportunity to comment. The main concerns raised by the landholders were that—

their property was part of the Cairns Regional Council at the time of purchase;

the property would automatically be covered by the Wujal Wujal community Alcohol Management Plan (AMP) if it were transferred to WWASC;

they could be placed at a financial disadvantage from a perceived decline in property value if their land became subject to the AMP: and

if included in the WWASC, they would effectively be disenfranchised because of their ineligibility to contest elections in an aboriginal shire.

With agreement, the landholders’ main concerns were relayed to the WWASC and Cairns Regional Council to assist in informing discussion about the proposals. A copy of each council’s response is at Appendix B.

In accordance with section 19 (4) of the Act, advertisements were placed in both the Cairns Post and Cooktown Local News advising of a public meeting to be held at Wujal Wujal on 9 June 2011. A total of 8 persons attended the meeting, including representatives from the WWASC and the landholders of Lot 12. The meeting was conducted by the Electoral Commissioner, Mr David Kerslake, in his capacity as Local Government Change Commissioner.

Both the landholders and members of the WWASC took the opportunity to address the meeting. All parties conducted themselves in a thoroughly professional manner. Even though council representatives and the landholders had different objectives, both acknowledged the validity of the other’s concerns.

The owners of Lot 12 took the opportunity to reiterate their concerns about application of the AMP as well as a potential reduction in property values. The WWASC responded that it was not convinced that there would be a drop in value, but agreed that the owners would not have expected to be affected by the AMP at the time they purchased their property. WWASC also pointed to difficulties experienced in relation to their ownership of Lots 8-10, in that development proposals relating to property they owned had to be submitted to another council for approval.

Those in attendance also engaged in discussion of possible compromise solutions, whereby Lots 8-10 would be transferred to the WWASC but Lot 12 remain in the Cairns Regional Council – in effect as an “island”, part of Cairns Regional Council but separated from that council by lots that formed part of WWASC. Representatives from WWASC indicated that,



while not ideal, they could accept such an outcome if it were the only means of acknowledging the legitimate interests of all parties. The landholders indicated that such a solution would not impact adversely on services to their property, because the only real council service they currently receive is the maintenance of the road which passes through the area. This part of the road (the route from Cape Tribulation as it enters the township of Wujal Wujal) would need to be maintained by the WWASC in any event because of its importance to the community.

The Change Commissioner concluded the meeting by stating that all input would be carefully considered, including the feasibility of the possible compromise solution that had been discussed.

The Change Commission’s findings and reasons are set out in Chapter 2, together with maps and a description of the new boundaries. This report has been forwarded to the Minister for Local Government for implementation.



CHAPTER 2 — FINDINGS

The referral from the Minister contemplates three changes to the boundary between WWASC and Cairns Regional Council.

1 Lot 2 on Plan SP171837 (see map at Appendix C)

This lot comprises the local football field which is presently part of a grazing lease. WWASC has advised that the lessee has agreed to this lot being signed over to the council under an Indigenous Land Use Agreement. Cairns Regional Council in turn has agreed to transfer the area to the control of WWASC to take account of the fact that the Wujal Wujal community are the recreational users of the area and that it is maintained by WWASC.

There is nothing contentious about this proposal and no concerns have been raised in the course of public consultation.

It is recommended that the Governor in Council give effect to this proposal.

2 Lot 17 on Plan SP224301 (see map at Appendix D)

Lot 17 comprises a public recreation area located within the boundaries of Cairns Regional Council. Agreement has been reached to transfer this area to the WWASC to reflect the latter’s responsibility for the day to day management of the area. Under an Indigenous Land Use Agreement WWASC has prepared a Management Plan for the area that provides for its continuing use as a public recreation area.

No objections to the proposed transfer were made to the Change Commission.

It is recommended that the Governor in Council give effect to this proposal.

3 Lots 8 ,9,10 and 12

The proposal to transfer Lots 8, 9, 10 and 12 is the most complex of the proposals referred to the Change Commission. All four are freehold lots. Lots 8, 9 and 10 are owned by the WWASC and are included in the restricted boundary area set down by the AMP that applies to the Wujal Wujal shire. Lot 1 is privately owned and is not currently subject to the AMP.

The owners of Lot 12 objected to this proposal.

After careful consideration and balancing a range of different interests, the Change Commission recommends against implementation of this proposal. The Commission’s reasons are set out below.

To date the council has erected eight community houses on the Lots 8, 9 and 10. There is enough remaining accessible land to enable the council to expand its housing program for the benefit of other families. Viewed in isolation, the desirability of additional community housing constitutes a cogent argument in favour of approving the proposal.

This view needs to be balanced, however, against the impact that the proposed transfer could have on the rights and legitimate interests of the owners of Lot 12. For example, in accordance with the provisions of the Liquor Act 1992, any land transferred to the WWASC



region would automatically be subject to the AMP that applies within the council boundaries. The Liquor Act provides no discretion to apply an exemption to the current owners. Importantly, Lot 12 was not subject to the AMP when it was purchased by the current landholders. The landholders argue that the inclusion of their property within the AMP would diminish the resale value of their property. While the WWASC maintains that this would not necessarily be the case, both it and the Cairns Regional Council acknowledge that the change in status would impose restrictions that the current landholders could not reasonably have foreseen at the time that they purchased the property.

A key factor that has been evident throughout the Change Commission’s enquiries is the high level of goodwill between the WWASC and the owners of Lot 12. Both have acknowledged concerns raised by the other. With this in mind, the Commission gave serious consideration to a possible compromise, the “island” solution referred to earlier in this report. As follow up to the meeting, the Change Commission contacted the Department of Local Government and Planning and was advised that an “island” solution as discussed at the public meeting would not be in breach of any existing laws. The Commission also noted the view of the Cairns Regional Council that

“It is important that both the owners of Lot 12 and those trying to protect the integrity of the AMP have their concerns raised, respected and addressed.”

Ultimately the Commission concluded that, while such a solution was the only means of meeting the legitimate interests of both parties, its attractions were outweighed by the administrative complexities to which such an approach may give rise.

This left the Change Commission with the difficult task of deciding between the competing interests of the parties. The Commission acknowledges that there are some existing administrative complexities that would arise in the event that the WWASC wished to pursue development proposals in relation to Lots 8-10 which it owns. These might be addressed, however, or at least minimised, through an appropriate administrative arrangement between the respective councils.

On the other hand, if the Change Commission accedes to the WWASC request, there is no current means of avoiding the fact that the owners of Lot 12 will become subject to restrictions on their land that were not in force, and could not reasonably have been foreseen, at the time of purchase.

On balance, the considered view of the Change Commission is that this proposal should not be implemented.



CHAPTER 3 — RECOMMENDATIONS

1 That the football field described as Lot 2 on Plan SP171837 be transferred from the Cairns Regional Council to the WWASC.

2 That the area described as Lot 17 on Plan SP224301 be transferred from the Cairns Regional Council to the WWASC.

3 That Lot 8 on RP903515, Lot 9 on RP 903516, Lot 10 on RP 903517 and Lot 12 on BK 15783 remain as part of the Cairns Regional Council.

David Kerslake Electoral Commissioner Local Government Change Commissioner



Appendix A — Letter from Minister referring matter with written views of the Wujal Wujal Aboriginal Shire Council and Cairns Regional Council and Objection by Landholder











Appendix B — Written views of the Wujal Wujal Aboriginal Shire Council and Cairns Regional Council concerning Objection by Landholder









Appendix C — Lot 2 on Plan SP171837



Appendix D — Lot 17 on Plan SP224301

Documents

LOCAL GOVERNMENT CHANGE COMMISSION · latter’s responsibility for the day to day management of the area. Under an Indigenous Land Use Agreement WWASC has prepared a Management Plan